"* * * [H]e continuously attempted to elicit
specific information regarding the CMR protocols and
guidelines which are used in preparing our reports. We
consider much of this information to be confidential
and proprietary. * * *

"* * * * *

"* * * The telephone call was made for the sole
purpose of gathering unauthorized discovery for [his]
lawsuit."

On August 2, 1994, in response to a request from
assistant disciplinary counsel, Hicks, about Adams' complaint,
the accused wrote that he had called Adams "as a result of an
investigation that we have been conducting against Mr. Adams, Dr.
Becker, Comprehensive Medical Review, and several others for
racketeering and fraud." (Emphasis added.) The accused's letter
stated, in part:

"In answer to Mr. Adams' specific charge that I
represented myself as a chiropractor, that is
absolutely false. I specifically told him that I was
inquiring about their educational programs for claims
adjusters and that I would like to participate in those
programs. Mr. Adams asked if I was a doctor. He did
not ask if I was a chiropractor. I told him I was a
doctor and that I did file reviews by the hundreds.
This, of course, is true."

Hicks then asked the accused to provide her with a copy of his
medical license. The accused responded:

"* * * I am quite shocked at your request that I
provide you with a copy of my medical license. * * *
Your records reflect that I am a Doctor of Juris
Prudence [sic] and that is not a misrepresentation.

"* * * There was no representation that I was a
medical doctor and even if there was, under the
circumstances of this fraudulent activity, that would
not be unethical."

Hicks subsequently asked the accused for additional
information in response to another letter that Adams had sent to
the Bar alleging a variety of additional misrepresentations and
false statements that the accused had made when he had called
Adams. On August 30, 1994, the accused responded, in part:

"I am not going to go into great detail about my
conversation with Mr. Adams. I was conducting a fraud
investigation on behalf of several clients and I am not
going to be a witness nor a party to the litigation
which will ultimately conclude in federal and state
courts.

"* * * * *

"It is also astounding to me that Mr. Adams would
continue to voice his contempt for my calling him and
our discussion about how he conducts his wrongful
business enterprise. * * *

"* * * * *

"I do not think that it is appropriate for the bar
association to entertain the complaint of Mr. Adams in
light of the serious allegations of criminal activity
that have been leveled against his company and several
others. There are literally hundreds if not thousands
of complaints that will be forthcoming against Mr.
Adams and his company or other defendants. When the
litigation is over, the courts will clearly have
identified who has been ethical and who has not.

"I have fully cooperated with the bar association
on this matter and I do not believe you will need more
information from me in order for you to proceed."

(Emphasis added.)

Approximately 15 months later, on November 6, 1995,
after the accused had retained legal counsel to represent him in
this matter, his lawyer sent Hicks a copy of a memorandum
entitled "Summarization of Dan Adams" that the accused had
prepared soon after his telephone conversation with Adams. In
response, Hicks asked why the accused had not sent her a copy of
the memorandum earlier in the investigation and whether the
accused had prepared the memorandum using other notes or records.
On January 9, 1996, the accused's lawyer responded that the
accused had not sent a copy of the memorandum sooner because "he
considered that document to be part of his attorney work
product." The January 9 letter also stated:

"* * * [The accused's] memorandum was prepared by
him from other notes or other records but, after a
complete search for those, they cannot be located.
[The accused] has instructed his office staff to
continue to try to locate those materials, but we fear
they are long gone. If they are located, however, they
will be provided to you."

In December 1996, the accused requested relief from the
federal protective order to allow him to use information that he
had acquired during the discovery process in the civil cases
against State Farm to defend against the charges in this
proceeding. The court allowed the accused to do so, and the
accused thereafter sent the transcript to the Bar. The
transcript made clear that the accused had told Adams that he was
interested in working for CMR, that he was a doctor, that he saw
patients, that he performed independent medical examinations, and
that he was interested in becoming involved with CMR's
educational seminars.

II. ESTOPPEL DEFENSE TO ALLEGED VIOLATIONS

In a single cause of complaint, the Bar charged the
accused with violating DR 1-102(A)(3), DR 7-102(A)(5), and ORS
9.527(4), all arising from his telephone calls to Becker and
Adams. We first address whether the trial panel erred in
dismissing the Bar's complaint on the ground that the Bar was
estopped from prosecuting the accused.

According to the trial panel, Bar counsel's responses
to the accused's 1992 complaint against SAIF and DOJ lawyers
"essentially represented to the Accused that SAIF's lawyers [sic]
conduct does not violate the Code of Professional Responsibility,
rather than representing to Accused that SAIF's lawyers were
accorded a prosecutorial exception to the disciplinary rules."
(Emphasis in original.) In the trial panel's view, the accused
reasonably inferred from those letters that, in the Bar's view,
it is ethical for a lawyer in private practice to use deceptive
methods to investigate other private parties. Accordingly, the
trial panel concluded that, when the accused made the telephone
calls to Becker and Adams, he believed that he was acting
ethically.

The Bar contends that its letters to the accused did
not state or imply that, in the Bar's view, it is ethical for a
lawyer in private practice to use deceptive methods to
investigate other private parties. Furthermore, it contends, its
investigation of the accused's complaint simply had "turned up
little if any reliable evidence" to support the accused's
assertions regarding the lawyers who allegedly had been involved
in Operation Clean Sweep, and its letters to the accused
reflected that fact. The accused responds that the Bar's letters
to him regarding his 1992 complaint against SAIF and DOJ lawyers
reasonably led him to believe that lawyers in private practice as
well as public lawyers may assist in a sting operation "that has
essentially deceitful elements" without violating the Code of
Professional Responsibility.

This court has held that a lawyer violates DR 7-102(A)(5) by misrepresenting the lawyer's identity while engaged
in the practice of law. SeeIn re Chambers, 292 Or 670, 680-81,
642 P2d 286 (1982) (lawyer's knowing misrepresentation of self as
independent insurance agent violates DR 7-102(A)(5)). Even
assuming that the accused relied on the Bar's letters in making
the calls, his reliance was not reasonable. The Bar's letters
neither stated nor implied that lawyers in the private practice
of law may misrepresent their identity or purpose in
investigating a matter. Moreover, advice from disciplinary
counsel is not a defense to a disciplinary violation. In re
Ainsworth, 289 Or 479, 490, 614 P2d 1127 (1980). The trial panel
erred in holding that the Bar was estopped from prosecuting the
accused for the alleged misconduct at issue in this case. We
turn to the merits.

III. ALLEGED VIOLATIONS

As noted, the Bar's single cause of complaint charged
the accused with violating DR 1-102(A)(3), DR 7-102(A)(5), and
ORS 9.527(4) in connection with his telephone calls to Becker and
Adams. The Bar's complaint alleged that the accused represented
himself to Becker as a chiropractor and that he made several
misrepresentations to Adams, including that he did independent
medical examinations, that he was interested in working for CMR,
that he did file and case reviews, that he saw patients, and that
he was interested in participating in CMR's educational programs
for insurance claims adjusters. The complaint also alleged that
the accused failed to disclose that he was a lawyer, that he was
preparing to sue CMR, and that he hoped that he would obtain
information from the telephone calls that he could use in claims
against CMR and Adams.

In his answer to the Bar's complaint, the accused
admitted that he had engaged in the conduct alleged. The accused
repeated those admissions during the hearing before the trial
panel, and he testified that he had intended to deceive both
Becker and Adams. The evidence demonstrates, as the trial panel
found, that the accused was engaged in the practice of law when
he made the telephone calls to Becker and Adams and that he had
committed each of the charges.

Before this court, the accused contends that, by merely
misrepresenting his identity and purpose for the sake of
obtaining information, when there was no monetary or other injury
involved, he did not violate the rules or the statute. The Bar
contends that it has proven by clear and convincing evidence that
the accused violated both the rules and the statute. We examine
the rules and statute in turn.

DR 1-102(A)(3) provides that "[i]t is professional
misconduct for a lawyer to * * * [e]ngage in conduct involving
dishonesty, fraud, deceit or misrepresentation." The term
"dishonesty" in the rule connotes lack of trustworthiness and
integrity. In re Leonard, 308 Or 560, 569, 784 P2d 95 (1989).
Misrepresentation is a broad term that encompasses the
nondisclosure of a material fact. In re Weidner, 310 Or 757, 762
n 2, 801 P2d 828 (1990). A misrepresentation may be a lie, a
half-truth, or even silence. In re Greene, 290 Or 291, 298, 620
P2d 1379 (1980). A material fact consists of information that,
if disclosed, would have influenced the recipient's conduct. SeeLeonard, 308 Or at 567-69 (failure to disclose true impact of
interlineated items in lease material, because disclosure would
have prevented other signatories from initialing lease). Even a
misrepresentation that is made with the best of intentions can be
a misrepresentation under DR 1-102(A)(3). In re McKee, 316 Or
114, 125, 849 P2d 509 (1993).

A misrepresentation becomes fraud or deceit "when it is
intended to be acted upon without being discovered." In re
Hiller, 298 Or 526, 533, 694 P2d 540 (1985). However, a finding
of fraud or deceit under the rule does not require evidence that
the recipient of the misrepresentation relied on it. SeeIn re
Benson, 317 Or 164, 169, 854 P2d 466 (1993) ("It is enough that
the accused tried to mislead.").

The prohibitions against dishonesty, fraud, deceit, and
misrepresentation in DR 1-102(A)(3) are not limited to litigation
or even to the representation of clients. Hiller, 298 Or at 532.
To establish a violation of DR 1-102(A)(3), the Bar, at a
minimum, must prove that the lawyer knowingly misrepresented a
material fact. Hiller, 298 Or at 532.

As noted, the accused's answer to the Bar's complaint
admitted the conduct alleged, and the accused notes that "the
evidence that the Bar presented [during the two-day hearing
before the trial panel] did nothing more than establish what [he]
had repeatedly admitted." It is undisputed that the accused made
affirmative misrepresentations to both Becker and Adams, and that
he omitted material facts in his conversations with them. The
accused also testified that his conduct was deceitful: He wanted
Becker and Adams to believe that he was a chiropractor who wanted
to work for CMR, and he intended to have both Becker and Adams
make damaging statements about CMR's file-review practices.

We turn to the Bar's allegation that the accused
violated DR 7-102(A)(5). That rule provides that, in the course
of representing a client or the lawyer's own interests, "a lawyer
shall not * * * [k]nowingly make a false statement of law or
fact." To violate the rule, the false statement must be made
with at least a knowing or reckless mental state. Weidner, 310
Or at 766. The focus of the rule is on the falsehood; it is of
no significance that the recipient of the false statement was not
misled by it. SeeIn re White, 311 Or 573, 586, 815 P2d 1257
(1991) (irrelevant whether court was misled by lawyer's false
statements). A lawyer violates DR 7-102(A)(5) by misrepresenting
his or her identity and purpose when contacting someone who is
likely to be adverse to the lawyer's client. Chambers, 292 Or at
680-81.

In this case, the accused admits that he made a false
statement to Becker when he told Becker that he was a
chiropractor and that he made several false statements to Adams.
For example, he told Adams that he saw patients and performed
independent medical examinations, which he does not do, and that
he was interested in working for CMR, when in fact he was not.

Finally, we consider the Bar's allegation that the
accused violated ORS 9.527(4). That statute provides that this
court may

"disbar, suspend or reprimand a member of the bar
whenever, upon proper proceedings for that purpose, it
appears to the court that * * * [t]he member is guilty
of willful deceit or misconduct in the legal
profession[.]"

Willful deceit or misconduct is synonymous with intentional
deceit or misconduct: It is conduct that is intended to cause a
particular result. SeeIn re Morris, 326 Or 493, 502 n 2, 953
P2d 387 (1998) (distinguishing between knowing and intentional
misconduct). The same conduct may violate both ORS 9.527(4) and
DR 1-102(A)(3). For example, this court has held that a lawyer
who endorsed another person's name on a check willfully violated
both the statute and engaged in deceit under the disciplinary
rule. In re Yacob, 318 Or 10, 17, 860 P2d 811 (1993). In this
case, the accused admits that his conduct was both deceitful and
intentional.

IV. PROPOSED EXCEPTIONS TO RULES AND STATUTE

The accused contends that this court should adopt an
investigatory exception to the disciplinary rules and the
statute. He asks this court to adopt the following exception:

"[A]s long as misrepresentations are limited only
to identity or purpose and [are] made solely for
purposes of discovering information, there is no
violation of the Code of Professional Responsibility."

According to the accused, such an exception is necessary if
lawyers in private practice, like their counterparts in the
government, are to be successful in their efforts to "root out
evil."

The trial panel refused to recognize an exception to
the rules or statute either for government lawyers or lawyers in
private practice. It held that "[t]he standards of conduct
provided by the disciplinary rules apply to all members of the
Bar, without exception." The trial panel also stated that, in
failing to prosecute the SAIF and DOJ lawyers about whom the
accused had complained in 1992, the Bar erroneously had relied on
a "prosecutorial exception" to the rules. It warned that the
Bar's "continued reliance on such an exception" will lead to more
situations, such as occurred in this case, "where [the] Accused
was seeking evidence of fraudulent conduct by CMR, and properly
alleges that his attempt to uncover fraud is no less important
than SAIF's attorneys' attempts."

Before this court, the United States Attorney for the
District of Oregon, appearing as amicus curiae, objects to the
trial panel's holding that there is no "prosecutorial exception"
to the Code of Professional Responsibility in Oregon. She argues
that the trial panel reached that conclusion "without examining
the important purposes that are served by legitimate law
enforcement undercover operations." The United States Attorney
explains that the United States Department of Justice "regularly
supervises and conducts undercover operations in Oregon that
necessarily involve a degree of deception." Such covert
operations involve both civil and criminal cases, ranging from
enforcement of civil rights statutes to international narcotics
conspiracies. She contends that federal courts long "have upheld
the use of deceptive law enforcement tactics" and that she has
"not found a single case in which deception and subterfuge are
prohibited as a tool of law enforcement." The United States
Attorney asks this court to adopt the following rule:

"Government attorneys who advise, conduct or
supervise legitimate law enforcement activities that
involve some form of deception or covert operations do
not violate DR 1-102(A)(3)."

The Attorney General for the State of Oregon agrees
with the United States Attorney. He contends that this court
should

"not interpret DR 1-102(A)(3) in a manner that
would determine that government attorneys who advise,
conduct or supervise legitimate law enforcement
activities that involve covert operations violate that
disciplinary rule."

The accused and, to a lesser extent, the United States
Attorney, point to legal commentary and authority from other
jurisdictions for the argument that this court should recognize
an exception to the disciplinary rules that prohibit conduct
involving dishonesty, fraud, deceit, misrepresentation, or false
statements of law or fact. Those authorities assert that public
policy favors an exception that, at the least, allows
investigators and discrimination testers to misrepresent their
identity and purpose when they are investigating persons who are
suspected of engaging in unlawful conduct. See David V. Isbell
and Lucantinoi N. Salvi, Investigators and Discrimination
Testers: An Analysis of the Provisions Prohibiting
Misrepresentation Under the Model Rules of Professional Conduct,
8 Geo J Legal Ethics 791, 801-04 (1995) (so stating). The
rationale for such an exception is that there may be no other way
for investigators or discrimination testers to determine if a
person who is suspected of unlawful conduct actually is engaged
in unlawful conduct. Therefore, the argument goes, the public
benefits more from allowing lawyers to use deception than
allowing unlawful conduct to go unchecked. Id. at 802; see alsoApple Corps Ltd. v. International Collectors Soc., 15 F Supp 2d
456, 475 (D NJ 1998) (lawyers in private practice may use "an
undercover investigator to detect ongoing violations of the law *
* *, especially where it would be difficult to discover the
violations by other means"). But seeSequa Corp. v. Lititech
Inc., 807 F Supp 653, 663 (D Colo 1992) (lawyers in private
practice may not use deception to investigate disciplinary
violations rather than reporting conduct to authorities).

The Oregon Consumer League, Fair Housing Counsel of
Oregon, Oregon Law Center, and numerous individual lawyers, also
appearing as amici curiae, object to suggestions that only
government lawyers should be exempt from certain rules of
professional conduct. They contend that there is no principled
reason to permit government lawyers to engage in covert
operations, but to label the same practices by the private bar as
"unacceptable vigilantism" even if it, too, is for the purpose of
rooting out fraud and illegality. Accordingly, those amici
propose the following rule:

"Provided that the conduct does not violate any
other provision of law or Disciplinary Rule, and
notwithstanding DR 1-102, DR 7-102 and ORS [9.527(4)],
a lawyer, personally or through an employee or agent,
may misstate or fail to state his or her identity
and/or purpose in contacting someone who is the subject
of an investigation for the purpose of gathering facts
before filing suit."

The Bar contends that whether there is or ought to be a
prosecutorial or some other exception to the disciplinary rules
is not an issue in this case. Technically, the Bar is correct.
However, the issue lies at the heart of this case, and to ignore
it here would be to leave unresolved a matter that is vexing to
the Bar, government lawyers, and lawyers in the private practice
of law. A clear answer from this court regarding exceptions to
the disciplinary rules is in order.

As members of the Bar ourselves -- some of whom have
prior experience as government lawyers and some of whom have
prior experience in private practice -- this court is aware that
there are circumstances in which misrepresentations, often in the
form of false statements of fact by those who investigate
violations of the law, are useful means for uncovering unlawful
and unfair practices, and that lawyers in both the public and
private sectors have relied on such tactics. However, ORS
9.490(1) provides that the rules of professional conduct "shall
be binding upon all members of the bar." (Emphasis added.)
Faithful adherence to the wording of DR 1-102(A)(3), DR 7-102(A)(5), ORS 9.527(4), and this court's case law does not
permit recognition of an exception for any lawyer to engage in
dishonesty, fraud, deceit, misrepresentation, or false
statements. In our view, this court should not create an
exception to the rules by judicial decree. Instead, any
exception must await the full debate that is contemplated by the
process for adopting and amending the Code of Professional
Responsibility. See ORS 9.490(1) (describing process for
formulating rules of professional conduct). Furthermore, this
court is prohibited from inserting into ORS 9.527(4) an exception
that the statute does not contain. ORS 174.010. That statute
applies to a member of the bar "whenever * * * [t]he member is
guilty of willful deceit or misconduct in the legal
profession[.]" We decline to adopt an exception to DR 1-102(A)(3) and DR 7-102(A)(5), and we are without authority to
read into ORS 9.527(4) an exception that the statute does not
contain. Those disciplinary rules and the statute apply to all
members of the Bar, without exception.

In the accused's view, the Bar's decision to dismiss
his 1992 complaint against SAIF and DOJ lawyers, who allegedly
had participated in Operation Clean Sweep, demonstrates the
constitutionally impermissible classification system that the Bar
has created. The trial panel rejected that argument. It
reasoned:

"To the extent that SAIF's lawyers were not
prosecuted, they were not prosecuted because of a lack
of evidence, and not because of any prosecutorial
immunity, notwithstanding the fact that the parties
have raised the immunity issue in these proceedings."

The Bar does not respond specifically to the accused's argument,
stating only that "the SPRB dismissed the [accused's 1992
complaint against SAIF and DOJ lawyers] based on lack of
evidence."

The accused is correct that discriminatory application
of a generally applicable law might violate Article I, section
20, or the Equal Protection Clause of the Fourteenth Amendment.
SeeState v. Clark, 291 Or 231, 239, 630 P2d 810 (1981) (Article
I, section 20, "reaches forbidden inequality in the
administration of laws"); United States v. Armstrong, 517 US 456,
465, 116 S Ct 1480, 134 L Ed 2d 687 (1996) (selective prosecution
claim cognizable under Fourteenth Amendment equal protection
principles); Village of Willowbrook v. Olech, ___ US ___, 120 S
Ct 1073, 1074, 145 L Ed 2d 1060 (2000) ("class of one" can
support equal protection claim if plaintiff alleges treatment
different from others and no rational basis for difference in
treatment). To prevail on such a claim, however, the accused
must show that the Bar's decision not to prosecute SAIF and DOJ
lawyers was based on an unconstitutional favoritism for those
persons. SeeHunter v. State of Oregon, 306 Or 529, 533, 761 P2d
502 (1988) (Article I, section 20, prohibits, among other things,
prosecution based on "impermissible factors such as race or
personal animosity or the absence of any standards that could
ensure consistency"); Oyler v. Boles, 368 US 448, 456, 82 S Ct
501, 7 L Ed 2d 446 (1962) (identifying impermissible
classifications such as "race, religion, or other arbitrary
classifications" for purposes of equal protection analysis).
Even assuming that it is impermissible under either constitution
for the Bar to distinguish between government lawyers and lawyers
in private practice in choosing whether to prosecute alleged
violations of the Code of Professional Responsibility, the
accused has failed to make the requisite showing in this case
that the Bar follows that practice. The accused has shown only
that the Bar believed that it did not have evidence to press
charges against certain government lawyers in response to his
complaint in 1992. The accused has not demonstrated that the Bar
has a policy of prosecuting lawyers in private practice but not
prosecuting government lawyers who are accused of violating the
Code of Professional Responsibility. On the facts of this case,
we reject the accused's claim that the Bar violated Article I,
section 20, or the Equal Protection Clause, in bringing this
proceeding.

Having rejected the proposal that this court adopt an
investigatory exception to DR 1-102(A)(3), DR 7-102(A)(5), and
ORS 9.527(4), and concluded that the accused's constitutional
defense is unavailing, we hold that the accused violated DR 1-102(A)(3), DR 7-102(A)(5), and ORS 9.527(4). We turn to the
matter of sanction.

VI. SANCTION

The Bar contends that the accused should be suspended
from the practice of law for at least 120 days. The accused
replies that no sanction or, at most, a public reprimand is
appropriate under the circumstances.

"The purpose of lawyer discipline proceedings is
to protect the public and the administration of justice
from lawyers who have not discharged, will not
discharge, or are unlikely properly to discharge their
professional duties to clients, the public, the legal
system, and the legal profession."

To determine the appropriate sanction, this court first
considers the duty violated, the accused's mental state, and the
actual or potential injury caused by the accused's misconduct.
In re Devers, 328 Or 230, 241, 974 P2d 191 (1999). Considering
those three factors leads to a suggested sanction, which this
court may choose to impose or may modify after examining
aggravating and mitigating circumstances and this court's case
law. Id.

A. Duty Violated

A lawyer owes the public a duty of honesty and personal
integrity. In re Unrein, 323 Or 285, 288, 917 P2d 1022 (1996).
By misrepresenting his identity and purpose and making other
false statements when he called Becker and Adams with the
intention of deceiving them, the accused violated his duty to the
public to maintain personal integrity. The introduction to ABA
Standard 5.0 explains that "[t]he public expects the lawyer to be
honest[.]" The commentary to ABA Standard 5.13 further explains
that, if the lawyer's conduct "is directly related to his or her
professional role, discipline is required" even if the conduct at
issue is not criminal.

B. Mental State

The ABA Standards identify three levels of mental
state: intentional, knowing, and negligent. ABA Standards at 6.
An intentional act is one done with "the conscious objective or
purpose to accomplish a particular result." ABA Standards at 7.
The accused concedes, and the record supports the finding, that
he acted intentionally when he misrepresented his identity to
Becker and Adams, and that he made false statements to them for
the purpose of obtaining damaging admissions about CMR's file-review practices. Nonetheless, the accused argues, this court
should view his mental state as negligent because, based on the
letters from the Bar's disciplinary counsel to him, he believed
that he was acting ethically when he made the misrepresentations
and false statements. As we have explained previously, the
accused's reliance on the Bar's letters was not reasonable. We
conclude that the accused acted intentionally.

C. Injury

A lawyer's conduct may cause actual or potential injury
to a client, the legal system, the legal profession, or the
public. ABA Standards at 6-7. In this case, there is no
evidence, and the Bar does not contend, that the accused's
conduct caused actual injury to Becker or Adams, because neither
of them revealed any damaging information to the accused.
However, the Bar contends that the accused's conduct created the
possibility of injury to CMR. If Householder had not known the
accused, and that he was a lawyer, Adams might have given the
accused confidential information about CMR's file-review
practices that he would not have divulged if he had known the
accused's true identity and purpose.

The accused contends that there was no potential for
injury to CMR, because he eventually obtained the information
that he sought through discovery. That argument is without
merit. When the accused engaged in the conduct at issue in this
case, he did so with the intent that CMR personnel would make
damaging statements about their file review practices. The
potential for injury that existed at that time was that Becker or
Adams would make statements that could affect their legal rights
regardless of any later lawful disclosure through discovery.

ABA Standard 5.13 provides:

"Reprimand is generally appropriate when a lawyer
knowingly engages in any [other than criminal] conduct
that involves dishonesty, fraud, deceit, or
misrepresentation and that adversely reflects on the
lawyer's fitness to practice law."

"a lawyer engages in any other [than criminal]
intentional conduct involving dishonesty, fraud,
deceit, or misrepresentation that seriously adversely
reflects on the lawyer's fitness to practice."

(Emphasis added.)

D. Aggravating and Mitigating Factors

Aggravating factors in this case include multiple
violations of the rules during the accused's telephone calls to
CMR personnel, ABA Standard 9.22(d), and the accused's
substantial experience in the practice of law, ABA Standards
9.22(i).

The Bar contends that another aggravating factor is
that the accused engaged in deception during the disciplinary
process by withholding evidence. See ABA Standards 9.22(f)
("submission of false evidence, false statements, or other
deceptive practices during the disciplinary process").
Specifically, it argues, the accused failed to disclose until
well into the investigation of Adams's complaint that he had made
tape recordings of his conversations with Becker and Adams. He
also stated in his January 9, 1996, letter that he was unable to
locate the transcript of his telephone conversation with Adams,
but admitted at the hearing that he had a copy of the transcript
when that letter was sent.

The accused offers four explanations for his responses
to the Bar's inquiries and investigation. First, he did not take
Adams' complaint seriously for several months, because he
believed that he was entitled to conduct a "private sting"
against CMR. Second, the accused was "religiously [sic]
indignant" that the Bar did not dismiss Adams's complaint,
because his sole purpose in contacting Becker and Adams was to
"root out fraud." Accordingly, his responses to the Bar's
inquiries during the initial period of its investigation were, in
his words, "nasty" and "arrogant," which he regrets. Third, the
accused admitted to all the conduct alleged in the Bar's
complaint, and he did not believe that matters such as the
transcript of his conversation with Adams were relevant in light
of those admissions. Finally, the accused was involved in
litigation with State Farm and CMR during the same time that the
Bar proceedings were under way, and he feared releasing any
documents or information that would compromise that litigation.

Our review of the record reveals that the accused was
not always as candid as he should have been during the Bar's
investigation. Regardless of a lawyer's feelings about the
merits of a complaint, he or she must be honest and cooperative
with the Bar. In re Wyllie, 327 Or 175, 182, 957 P2d 1222
(1998). However, the Bar did not charge the accused with
violating DR 1-103(C) (duty to cooperate with disciplinary
investigation). Our review of the record also persuades us that
there was a degree of misunderstanding on both sides that
hampered communications during the Bar's investigation and that
extended into the trial panel proceedings. Accordingly, to the
extent that the accused's lack of candor in this case is an
aggravating factor, we do not accord it substantial weight.

The Bar suggests that another aggravating factor is
that the accused has a record of prior discipline, consisting of
a letter of admonition in 1989. ABA Standards 9.22(a). That
admonition dealt with a complaint alleging that the accused had
over-billed a client for costs and charged an excessive fee. We
do not consider that admonition as an aggravating factor here,
because it did not involve the same or similar misconduct that is
at issue in this case. SeeIn re Cohen, 330 Or __ , __ P2d__
(August 10, 2000).

We turn to mitigating factors. The accused did not act
with a selfish motive. ABA Standards 9.32(b). The accused
sincerely believed, and still believes, that lawyers must be
permitted to make misrepresentations and false statements of
identity and purpose to discover information without violating
the disciplinary rules. In addition, two witnesses testified
that the accused has a good character and reputation. ABA
Standards 9.32(g).

E. Oregon Case Law

This court has stated that any violation of DR 1-102(A)(3) is a "serious matter," Greene, 290 Or at 297, and it
views the making a false statements of fact in violation of DR 7-102(A)(5) as an act of moral turpitude, Chambers, 292 Or at 681.
In other situations, violations of those rules have resulted in
significant suspensions from the practice of law. However, this
proceeding has brought to the surface an issue that has been
festering for some time, namely, whether any lawyer may
misrepresent his or her identity or purpose to gather information
without violating the Code of Professional Responsibility.
Statements by parties amici indicate that lawyers in both private
practice and those who work in the public sector in good faith
have held the mistaken belief that they ethically are permitted
to misrepresent their identity and purpose, and to encourage
others to do so, to acquire information. Thus, it is a fortuity
that the accused in this case, rather than some other Oregon
lawyer, is the subject of these proceedings.

As we have explained, the accused was mistaken in his
belief that a lawyer is entitled to misrepresent identity and
purpose to gather information without violating the Code of
Professional Responsibility and ORS 9.527(4). Nonetheless, the
briefing in this case reveals that the accused is not alone among
lawyers in holding that belief. The Bar's June 16, 1993, letter
to the accused in response to his complaint about SAIF and DOJ
lawyers indicates that the Bar also may believe there might be
exceptions to the rules and statute. However, as we have
explained, the wording of DR 1-102(A)(3), DR 7-102(A)(5), and ORS
9.527(4), as well as this court's case law, do not permit
recognition of an exception to those rules and statute. The
rules and statute apply to all members of the Oregon State Bar,
without exception.

In this case, the accused admitted fully and freely in
his answer to the Bar's complaint that he had engaged in the
conduct the Bar alleged. He again admitted to that conduct
during the trial panel proceedings. His candor with the Bar
during its investigation was not exemplary but, as noted, the Bar
did not charge him with violating DR 1-103(C). Under the
circumstances of this case, therefore, we conclude that a public
reprimand is the appropriate sanction.

The accused is reprimanded.

1. The accused and lawyers with whom he was associated
also filed claims against State Farm and CMR in other
jurisdictions raising the same issues.

2. As noted, although the accused admits that he wanted
Adams to believe that he was a chiropractor, he denies that he
told Adams that he was a chiropractor. The trial panel did not
resolve that factual dispute. A finding either way would not
affect our analysis in this case, because the accused admits that
he wished to create a false impression with Adams, and that he
did so.